Passionate about IP! Since June 2003 the IPKat has covered copyright, patent, trade mark, info-tech, privacy and confidentiality issues from a mainly UK and European perspective. The team is Neil J. Wilkof, Annsley Merelle Ward, Nicola Searle, Eleonora Rosati, and Merpel, with contributions from Mark Schweizer. Read, post comments and participate! E-mail the Kats here

The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Wednesday, 14 June 2017

As
readers with an interest in online enforcement issues will know, the Lumen database (formerly Chilling
Effects) “collects and analyzes legal complaints and requests for removal of
online materials, helping Internet users to know their rights and understand
the law. These data enable us to study the prevalence of legal threats and let
Internet users see the source of content removals.”

Such
requests may relate to a variety of claims, including IP-related ones. From
Katfriend Mirko Brüß (Waldorf Frommer Rechtsanwälte) comes the news that a German court
has
issued an injunction against Google, preventing it from linking to Lumen in the context of a claim for defamation.

Here’s what Mirko
writes:

“The Higher Regional Court of Munich
(Oberlandesgericht München) has issued an injunction against Google (case no.
18 W 826/17) that provides some insight into an interesting problem that has
bothered copyright owners and victims of online defamation alike. Upon
receiving a takedown notice or a court order, Google routinely deletes infringing
websites from its search results.

However, Google will simultaneously
forward the notice to Lumen (formerly Chilling Effects), and also provide a
link to Lumen’s website (www.lumendatabase.org/), where the full notice,
including the hyperlink to the infringing website can (still) be found, thus –
according to some – perpetuating the infringement.

The question presented to the Munich
Court was whether Google is legally obliged to refrain from linking to Lumen
and can be forced to do so. It appears that this has not been yet decided by a
court, at least for the territory of Germany. In short, the court’s anwer to
this question was: yes.

The claimant in this case is a German
company. When entering the combination of the company‘s name and the words ‘suspected
fraud’ (original: ‘Betrugsverdacht’) in a Google search, the results would show
four snippets containing the company’s name and the words ‘suspected fraud, public
prosecutor is investigating’ as news headlines. However, the company was not
being investigated for fraud (§ 263 StGB - German criminal code), but for
investment fraud (§ 264a StGB). While both crimes are fraud-related, the legal
requirements for investment fraud are very different from regular fraud. In
particular, in case of investment fraud, no deception needs to have taken place
(yet) and no damage needs to have occurred.

The Oberlandesgericht München

Thus, the statement that the company
was being investigated because of fraud was false. Under German law, making
such a false claim about a company could infringe the company‘s right of
publicity. This led to a first court case between the parties, in which Google
was ordered by the regional court of Munich (case no. 25 O 3214/17) to stop
showing the website(s) with the infringing text in its search results.

Upon being served the first injunction,
Google removed the websites from its search results and instead showed an
explanation that one search result had been removed and provided a hyperlink to
the website lumendatabase.org. The explanation read (in German):

“As a
reaction to a legal request that was sent to Google, we have removed one search
result. You can find further information at LumenDatabase.org”

Clicking the link included in this
text would redirect users to a page on Lumen where the ‘deleted’ link to the
infringing (false) statement was available.

The claimant thought that by doing so,
Google continued to provide access to the infringing website and thus brought
another court action, this time seeking an order against Google regarding
linking to the Lumen website where the ‘infringing’ links were stored as part
of Google’s transparency actions. This claim was dismissed by the court of
first instance, the Regional Court of Munich (case no. 25 O 5616/17). While the
same court had previously found that Google’s search results were infringing,
the court now denied an infringing contribution by Google, because Google did
not link to a website that contained the infringing statement, but did merely
link to Lumen, where users had to click another link to be forwarded to the
infringing content.

This judgment was appealed by the
claimant, and the second instance reversed the regional court’s decision,
granting the claim against Google.

While one could have
expected the judgment to touch upon the recent GS Media[Katpostshere] and Filmspeler[Katposts here] decisions of the Court of Justice
of the European Union, it does not do so. This would have been very interesting,
because after GS Media, ‘commercial’
linking to infringing content is subject to a presumption of knowledge by the
link provider which, if not rebutted, may lead to a finding of liability.But in the case at hand, the Higher
Regional Court found that Google’s main function that needs to be considered
here is not the provision of a (direct) hyperlink to the infringing statement,
but rather the provision of a search function that enables users to find the
(otherwise hard to find) website. By presenting its users an explanation about
the deleted search result, combined with a hyperlink to the Lumen website where
the deleted search result could be clicked, Google (still) enabled users to
find and read the infringing statements, even after being ordered by a court to
discontinue doing so. The court found that it made no difference whether one or
two clicks are needed to get to the result.

Here, the claimant had also asked
Google to delete the hyperlink to the Lumen website before going to court the
second time. In response, Google refused to delete the link, stating that
transparency for the users had the highest priority.

Under such conditions, the court’s
reasoning is convincing. Google’s practice to delete infringing search results,
only to make them available elsewhere - via a copy of the takedown request that
is then linked to in search results - does not make any sense and appears to be
in defiance of a claimant/victim’s rights. If Google feels the need to make
every notice available for reasons of transparency, it should do so by
presenting a copy of the notice that only contains hyperlinks that are redacted
in such a way that they cannot be used to access the infringing content. For
the purpose of possible litigation (that might arise from counter-claims or the
like), Google could keep an un-edited copy of the original notice that is not
made available to the public.

Since the claim was brought in preliminary
proceedings, Google cannot appeal the Higher Regional Court’s decision. It may
only ask the claimant to enter main proceedings, which would then begin (again)
at the Regional Court’s level.”

8 comments:

BingBong
said...

I'm not sure how the right to publicity of the company is damaged here, since the hyperlink is presented in the context of a takedown notice which would have to explain why the linked information was inaccurate in order to justify the takedown. The searcher then has the two additional pieces of information i) that the company has refuted the false accusation, and ii) that Google has agreed that they cannot justify the accusation. So, by Google's actions, the searcher is presented not with selective facts, but is put on notice as to the full facts, via the link provided by Google. The harm of an unchallenged accusation is counteracted, the searcher has the full facts, and Google retains its commitment to transparency.

it appears that the "infringing" URLs in the Lumen Database have been redacted:

https://lumendatabase.org/notices/12516061

Had this already been the case when Google first linked to Lumen, I believe the court would have dismissed the claim.

The example above also shows that - like I suggested in my blog-post - it is possible to have transparency and respect the rights of copyright owners and victims of defamation. I still don't understand why this is not a standard practice by Lumen.

"I still don't understand why [partial or full URL redaction] is not a standard practice by Lumen."

Because takedown notices are widely abused for the purposes of censorship. This is something we've seen happen repeatedly, and demanding Google to stop posting notification of takedown notices is an alarming attempt to stifle public oversight of this process.

Demanding redactions on all the URLs by the people monitoring these takedown requests is another way of attempting to stifle the public's ability to monitor these requests. Partial redactions are perhaps a compromise; you can see the main site address but based on what you searched for in the search engine you have to figure it out on your own or contact Lumen directly. It's still not ideal though as it compromises public oversight, and sites that are of genuine concern such as revenge porn sites should not be addressed simply with search engine takedowns, but rather by going to the actual webhost and demanding action be taken against the content and site owner directly (as many such webhost have rules against such content in their ToS).

So, Mirko Brüß,Please explain - if it's not appropriate for Google to put the link to Lumen at the bottom of search results, why is it permissible for you to post the Lumen URL of the notice in question here on IPKat? Your comment was the way I found out what notice the order was about.

As one being tasked with removing evidently false information from Google search results, let me assure you, that Google is not caving in to just any takedown notice. While it may be Google's job, to resist unlawful demands to censor its search results, once the validity of such a demand has been established, there is no public "right" to conduct any additional oversight.

The "public" is neither partial to all the relevant information nor qualified to assess them accurately. But what they will do despite that - especially in cases of libel or defamation - is judge anyway. They will click on that porn revenge site, they will think "well, there must be something to it, since KillFragger66 said so" and more often than not, something will stick to the detriment of the defamed party.

I applaud Google to resist unlawful demands, but since they make the web systematically accessible, they also have a duty not to actively or obliquely make available evidently false and defaming information. If Google decided - as was the case here - that that the relevant information was unlawful, they are bound by law to remove it. The higher regional court has ruled correctly, that they did not do that, as it makes no difference, if Google provides that information via one or two clicks, because provide it, they did.

IPKat Policies

This page summarises the IPKat policies on guest submissions and comments. If you have posted a comment to one of our blogposts and it hasn't appeared, it may be because it doesn't match our criteria for moderation. To learn more about our guest submissions, comments and complaints policy and the procedure for lodging a complaint click here.

Has the Kat got your tongue?

Just click the magic box below and get this page translated into a bewildering selection of languages!